Spanos v Lazaris - [2008] NSWCA 74

NEW SOUTH WALES COURT OF APPEAL

CITATION:
SPANOS v LAZARIS [2008] NSWCA 74

FILE NUMBER(S):
40586/07

HEARING DATE(S):
9 April 2008

JUDGMENT DATE:
28 April 2008

PARTIES:
Anthony William Spanos (Appellant)
George Lazaris (First Respondent)
District Court of New South Wales (Second Respondent)

JUDGMENT OF:
Beazley JA Basten JA Bell JA

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 07/12/0438

LOWER COURT JUDICIAL OFFICER:
Solomon DCJ

LOWER COURT DATE OF DECISION:
8 August 2007

COUNSEL:
Appellant Self-represented
J W Conomos/S Wells (First Respondent)

SOLICITORS:
Appellant Self-represented
Carneys Lawyers (First Respondent)
Crown Solicitor's Office (Second Respondent)

CATCHWORDS:
EVIDENCE – admissibility of further evidence on appeal – relevance
JUDICIAL REVIEW – assessment of evidence of witnesses who appeared in court below – assessment of credibility – apprehension of bias – views expressed by judge in course of argument – procedural unfairness – failure to produce document
JURISDICTION – review of order of District Court judge – error of law on face of record – jurisdictional error – [Supreme Court Act] 1970 (NSW) s 69 – [District Court Act] 1973 (NSW) s 176

LEGISLATION CITED:
[Crimes Act] 1900 (NSW), s 300
[Crimes (Appeal and Review) Act] 2001 (NSW), ss 11, 18, 19, 20
[Criminal Appeal Act] 1912 (NSW), s 5B
[District Court Act] 1973 (NSW), s 176
[Justices Act] 1901 (NSW), s 146
[Supreme Court Act] 1970 (NSW), s 69, 75A

CATEGORY:
Principal judgment

CASES CITED:
[Anderson v Judges of District Court (NSW)] (1992) 27 NSWLR 701
[Charara v The Queen] [2006] NSWCCA 244; 164 A Crim R 39
[Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd] [2006] HCA 55; 229 CLR 577
[Craig v South Australia] [1995] HCA 58; (1995) 184 CLR 163
[Dranichnikov v Minister for Immigration and Multicultural Affairs] [2003] HCA 26; 77 ALJR 1088
[Ebner v Official Trustee in Bankruptcy] [2000] HCA 63; 205 CLR 337
[Ex parte Blackwell; re Hateley] (1965) 83 WN (Pt 1) (NSW) 109
[Fox v Percy] (2003) 214 CLR 118
[Gianoutsos v Glykis] [2006] NSWCCA 137; 65 NSWLR 539
[Johnson v Johnson] [2000] HCA 48; 201 CLR 488
[Lee v Cha] [2008] NSWCA 13
[Mordaunt v Director of Public Prosecutions (NSW)] [2007] NSWCA 121; 171 A Crim R 510
[Parker v Director of Public Prosecutions] (1992) 28 NSWLR 282
[R v Judge Mullaly; Ex parte Attorney-General (Cth)] [1984] VR 745
[Re McBain; Ex parte Australian Catholic Bishops Conference] [2002] HCA 16; 209 CLR 372
[Re Minister for Immigration and Multicultural Affairs; Ex parte Miah] [2001] HCA 22; 206 CLR 57
[Sasterawan v Morris] [2007] NSWCCA 185

TEXTS CITED:

DECISION:
Summons dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40586/07
DC 07/12/0438
BEAZLEY JA
BASTEN JA
BELL JA
28 April 2008

Anthony William SPANOS v George LAZARIS

Headnote

In 1984, Mr William Spanos, the father of the applicant, purchased an apartment in Cyprus in the applicant’s name. In October 1984, the applicant executed a power of attorney in favour of his sister, Ms Carolyn Georgiades, who was at that time residing in Cyprus. The present proceedings relate to a second power of attorney purportedly executed by the applicant in favour of Ms Georgiades on 6 April 1995, conferring on her power to sell or otherwise deal with the property. The second power of attorney was said to be signed before the respondent, a justice of the peace and close associate of Mr Spanos Senior.

Mr Spanos Senior died in February 1997 and Ms Georgiades commenced proceedings in Cyprus against the applicant seeking a declaration that the apartment was held in trust for her by the applicant. In the course of these proceedings, the applicant was shown a photocopy of the power of attorney purportedly executed by him on 6 April 1995. He denied that the signature was his. In 2006, judgment was given in favour of Ms Georgiades.

The applicant commenced proceedings against the respondent in the Local Court by way of private prosecution for an offence under s 300 of the Crimes Act 1900 (NSW), alleging that the respondent had made a false instrument in the applicant’s name, with the intention that the instrument would be used to induce a third person to accept it as genuine and do some act to the applicant’s prejudice. The respondent was convicted in the Local Court and appealed against his conviction to the District Court pursuant to s 11 of the Crimes (Appeal and Review) Act 2001 (NSW). Solomon DCJ was not satisfied beyond reasonable doubt that the present respondent had made the false document, and the conviction was set aside.

In the present proceedings, the applicant sought, pursuant to s 69 of the Supreme Court Act 1970 (NSW), judicial review of the order of Solomon DCJ quashing the conviction.

The issues for determination on appeal were:

the jurisdiction of the Court to review the order of the District Court Judge;

whether the District Court Judge failed to accord proper recognition to the advantages enjoyed by the Local Court in relation to the assessment of credibility of witnesses;

whether there was a reasonable apprehension of bias on the part of the District Court Judge;

whether there had been procedural unfairness; and

the admissibility of further material tendered by the applicant in the present proceedings.

The Court held, dismissing the appeal:
(per Basten JA, Beazley and Bell JJA agreeing)

In relation to (i)

Section 176 of the District Court Act 1973 (NSW) precludes relief in the nature of certiorari based on error of law on the face of the record, but does not prevent the grant of relief where jurisdictional error is established: [14]-[15].

Ex parte Blackwell; re Hateley (1965) 83 WN (Pt 1) (NSW) 109; Reischauer v Knoblanche (1987) 10 NSWLR 40; Anderson v Judges of District Court (NSW) (1992) 27 NSWLR 701; Parker v Director of Public Prosecutions (1992) 28 NSWLR 282, referred to.

In relation to (ii)

A court exercising powers of judicial review should not readily be persuaded to infer that an experienced judge who correctly stated the principles to be applied then failed to apply them. No error was shown in the reasoning of the Judge in assessing the evidence given in the Local Court: [39].
Fox v Percy (2003) 214 CLR 118; Gianoutsos v Glykis [2006] NSWCCA 137; 65 NSWLR 539; Charara v The Queen [2006] NSWCCA 244; 164 A Crim R 39, considered.
Mordaunt v Director of Public Prosecutions (NSW) [2007] NSWCA 121; 171 A Crim R 510; Sasterawan v Morris [2007] NSWCCA 185, referred to.

In relation to (iii)

The views expressed by the Judge in relation to the matters complained of were based on a consideration of all the evidence and expressed in the course of argument, but immediately prior to the delivery of an ex-tempore judgment. They did not give rise to an apprehension of pre-judgment: [44]-[47].

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337; Johnson v Johnson [2000] HCA 48; 201 CLR 488; Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd [2006] HCA 55; 229 CLR 577; Lee v Cha [2008] NSWCA 13, referred to.

In relation to (iv)

There was no admissible evidence before the Court to support the applicant’s contention that, in the course of his cross-examination in the Local Court, he had been shown the original of the document marked “MFI C”. The claim for procedural unfairness must fail: [51].

In relation to (v)

The documents tendered by the applicant were relevant to the claim of procedural unfairness based on the failure to produce the original of the document “MFI C”. The documents should be admitted on that limited basis: [54].

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40586/07
DC 07/12/0438
BEAZLEY JA
BASTEN JA
BELL JA
28 April 2008

Anthony William SPANOS v George LAZARIS

Judgment

BEAZLEY JA: I agree with Basten JA.
BASTEN JA: In 1984 Mr William Spanos, the father of the present applicant, purchased an apartment in Nicosia, Cyprus. Although Mr Spanos Senior paid for the apartment, it was put in the name of the applicant. At that time, the applicant’s sister, Ms Carolyn Georgiades, was married and living in Cyprus. In October 1984 the applicant executed a power of attorney in favour of his sister. However, it appears that she later separated from her husband and returned to Sydney in 1995. The subject matter of the present proceedings is concerned with a second power of attorney purportedly executed by the applicant in favour of Ms Georgiades on 6 April 1995, conferring on her power to sell or otherwise deal with the applicant’s property.
The second power of attorney was purportedly signed before the respondent, Mr George Lazaris, who had been a close associate of the applicant’s father and was a licensed real estate agent and justice of the peace.
On 27 February 1997 Mr Spanos Senior died and in the same year Ms Georgiades commenced proceedings against the applicant in the District Court of Nicosia seeking a declaration that the apartment was held by the applicant for her, in trust.
Ms Georgiades obtained a judgment in the Cyprus proceedings in her favour in 2006.
The applicant appeared in the District Court of Nicosia in 2002, at which time he was shown a photocopy of the power of attorney purportedly executed by him on 6 April 1995. He denied that the signature was his. In about 2006 he commenced proceedings by way of private prosecution against Mr Lazaris for an offence under s 300 of the Crimes Act 1900 (NSW). The short particulars of the offence alleged that the respondent had “made a false statement, namely a power of attorney” in the name of the applicant, with the intent that his sister would use the false instrument as if it were genuine, thereby acting to the prejudice of the applicant.
The prosecution was heard, with both parties represented, in the Local Court on 16 and 17 November 2006. Mr Spanos gave evidence in his (prosecution) case, stating that the signature on the power of attorney was not his. A handwriting expert, Mr Paul Westwood, expressed an opinion supporting that assertion. Mr Lazaris gave evidence in his own defence, saying that the power of attorney was signed by the applicant in his presence on 6 April 1995. The Local Court accepted the applicant’s case and convicted the respondent.
The respondent appealed from his conviction to the District Court pursuant to s 11 of the Crimes (Appeal and Review) Act 2001 (NSW) (“the Appeal and Review Act”). That appeal was heard by Solomon DCJ on 7 and 8 August 2007. His Honour upheld the appeal and quashed the conviction. (Strictly speaking, the correct order was to set aside the conviction, pursuant to s 20(1)(a) of the Appeal and Review Act.)
The applicant did not seek to invoke any form of statutory appeal (which could only have been the referral of a question under s 5B of the Criminal Appeal Act 1912 (NSW)) in relation to the order of the District Court, but rather sought pursuant to s 69 of the Supreme Court Act 1970 (NSW) judicial review of the order of Solomon DCJ quashing the conviction.

Procedure in this Court

The applicant had representation in the Local Court and in the District Court, in preparing a Summons seeking review in this Court and in preparing written submissions filed in this Court. He appeared for himself, however, on the hearing of the Summons.
Despite his earlier legal representation, the applicant’s case was not well presented in this Court. Apart from the Summons and the written submissions, the only materials filed prior to the hearing were the judgments and transcripts in the Local Court and the District Court respectively. There was no affidavit in support of the summons; the court attendance notice which instituted proceedings in the Local Court was not put before this Court; the exhibits in the Local Court and the District Court were not put before this Court. These omissions were sought to be remedied in part at the hearing, the various exhibits being tendered without objection. The applicant also sought to tender two documents which had not been in evidence in the District Court, each of which was admitted in this Court subject to an objection with respect to their relevance. (That issue is addressed at the end of these reasons.)
Review under s 69 of the Supreme Court Act extends to relief formerly available by writ of certiorari. Relief of that kind extends to the quashing of a determination of a court on the basis of error of law on the face of the record of the proceedings: s 69(3). The section also provides that “the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination”: s 69(4).
The record had no such extended meaning under the general law. As noted in the judgment of the High Court in Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 181, “the approach that the transcript of proceedings and the reasons for decision constitute part of ‘the record’ would, if accepted, go a long way towards transforming certiorari into a discretionary general appeal for error of law upon which the transcript of proceedings and the reasons for decision could be scoured and analysed in a search for some internal error”. Section 69(4), introduced following Craig, significantly expanded the availability of relief under s 69 by permitting analysis of the reasons for judgment, but did not in terms allow scrutiny of the transcript of proceedings. It is arguable that parts of the transcript might be available to the court on review, as part of the record below but, as with the general law principles relating to the scope of “the record”, that would only occur where the court below had chosen to incorporate specific parts of the transcript into the reasons for judgment. It was not suggested that this had happened in the present case.
In considering the jurisdiction under s 69, it is necessary to inquire whether, by way of a privative clause or otherwise, there is any legislative constraint on the Court’s exercise of its powers to quash or otherwise review a decision: s 69(5). None was relied upon by the respondent in the present proceedings, but it is appropriate to note that s 176 of the District Court Act 1973 (NSW) provides that “no adjudication on appeal of the District Court is to be removed by any order into the Supreme Court”.
This provision had its predecessor in s 146 of the Justices Act 1901 (NSW). It has long been established that the effect of such a provision is to preclude relief in the nature of certiorari based on error of law on the face of the record, but not to prevent relief where the order complained of is a nullity or, in contemporary parlance, a challenge based on jurisdictional error: see Ex parte Blackwell; re Hateley (1965) 83 WN (Pt 1) (NSW) 109 at 111-113 (Wallace J); Reischauer v Knoblanche (1987) 10 NSWLR 40 at 47 (Kirby P, Samuels and Priestley JJA agreeing); Anderson v Judges of District Court (NSW) (1992) 27 NSWLR 701 at 717-718 (Kirby P, Meagher and Sheller JJA agreeing); Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 at 295 (Kirby P). It was not suggested that any different approach should be adopted under the new provision. A jurisdictional error is a failure to comply with an essential precondition or limit to the valid exercise of a power, whether either the precondition or power arises under the general law or under statute.
In his summons seeking review, the applicant alleged that there had been a failure to afford him procedural fairness in the District Court. That failure was not particularised. However, it is not in doubt that such a failure would constitute ‘jurisdictional error’. In written submissions filed in November 2007, a number of grounds were addressed, if in some respects lightly and not necessarily as elements of procedural unfairness.
It is convenient to identify the grounds apparently relied upon. The first was what may be described as a “Fox v Percy” challenge. That was, in substance, a complaint that the Judge, in assessing the evidence given in the Local Court and the findings of the Magistrate, failed to accord proper recognition to the advantages enjoyed by the Court which had heard the witnesses give evidence and was required to assess their respective degrees of credibility.
A second ground was that the judge was “unreasonably hostile” to the applicant’s case and had pre-judged the issues. In traditional terms, this might have involved a complaint of bias or at least a reasonable apprehension of bias. The latter being the lesser hurdle, it is appropriate to treat that as the ground relied upon.
Thirdly, the submissions complained that the District Court “exceeded its jurisdiction by taking account of irrelevant considerations and disregarding relevant evidence”. The first limb of this complaint was unsubstantiated and it is not possible to divine from any part of the record an attempt by the Judge to rely upon matters which were prohibited considerations, in the context of the proceedings before him. The second limb, involving the disregarding of relevant evidence, may be understood as a form of procedural unfairness if it could be shown that the evidence was undoubtedly material and that for some reason the judge had failed to address it. As explained by Gummow and Callinan JJ in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 at [24]:
“To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice.”
See also Kirby J at [86] referring to Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57 at [81] to the effect that a failure to consider the substance of the application before the Court may reveal a misunderstanding as to the jurisdiction being exercised.
In order to assess these complaints, it is necessary to set out the circumstances of the proceedings, at least as revealed by the judgments below.

Proceedings in the Local Court

As the matter appeared to the Magistrate, the case turned upon two related disputes. Each arose from the applicant’s denial that he had signed the power of attorney. The respondent said that the applicant had signed it, at a meeting on a particular day, being the day on which the respondent attested to the execution of the document.
The applicant gave evidence that the signature was not his and that he had never seen the document before being shown in it the District Court at Nicosia in 2002. On this point he appears to have been unshaken in cross-examination. In support of his denial, he called evidence from a forensic expert, Mr Paul Westwood, to the effect that the signature on the document was not that of the person who had provided signatures for comparison. He stated that the writer of the disputed signature was “highly unlikely” to have been the writer of the specimen signatures attributed to the applicant. However, he qualified his answer in cross-examination stating, in a passage from the transcript of 16 November 2006 relied upon in the District Court judgment:
“Well, it’s a clear case of a different form of signature. I mean I’ve got to entertain the possibility that it could have been written by Mr Spanos but he’s written it in a completely foreign way. You’ve got to admit that that is a possibility and that’s why I’m qualifying my finding, although it’s only a limited altercation (sic) [qualification?], but, I can’t say in absolute terms. I mean if I had the original there might be some other features about the direction of certain strokes that might really tip the balance one way or another.”
The Magistrate dealt with this evidence in the following passage (Judgment, 17/11/06, p 2):
“Importantly [Mr Westwood] could not rule out as a possibility that the prosecutor had deliberately altered his own signature. Looking at the signature on Exhibit 1 and Exhibit 8 and comparing it with the signatures in the sample provided by the prosecution and considering the evidence of Mr Westwood, I am satisfied that they are different and that it does not appear to be the usual signature of the prosecutor.”

This passage is somewhat ambivalent as to whether her Honour reached a satisfaction beyond reasonable doubt that the signature was not that of the applicant. She later stated (at p 6):
“I am satisfied that the signature on Exhibit 1 is not that of the prosecutor ….”
There was, as both the Magistrate and the District Court Judge expressly identified, a further question which needed to be addressed. The case against the respondent did not turn on whether he forged the applicant’s signature himself, but on whether he “made” a false instrument, with the intention that he, or another person, would use it to induce a third person to accept the instrument as genuine and because of that acceptance, to do some act to the applicant’s prejudice. For this purpose, the instrument which he made was in effect the attestation clause signed by him as a justice of the peace stating that the power of attorney had been “signed sealed and delivered by the said Anthony William Spanos” in his presence on 6 April 1995.
If the applicant’s evidence were accepted and stood alone, it would undoubtedly have been open to the Magistrate to convict the respondent of the offence charged. However, it did not stand alone. As the Magistrate noted there was also the evidence of the respondent. She stated (at p4):
“The accused is a 75 year old man who came to this country in 1949. He is a licensed real estate agent, a JP and he has never come into contact with the criminal law before. He must be regarded as a person of good character. He gave evidence of a number of positions he holds in the community and he regards his status in the community as very important. I take that into account in two ways; firstly it is relevant to the credit of the accused, it is also relevant to the question of his guilt. That is, whether it is likely he would commit the offence for which he has been charged.”
Her Honour then noted that the respondent had denied that the power of attorney was a false document, but was cross-examined as to whether he had conspired with Ms Georgiades to make a false document. The Magistrate continued:
“He denied that vehemently and added in his evidence, ‘What do I get out of it?’ A good question I would’ve thought. Whilst there is some evidence of motive for Caroline Georgadis [sic] needing the power of attorney, there is no evidence of what the accused was to have gained from this whole process.
The prosecution do not need to prove that as an element, but where the court is to favour one account over another I must consider what this man, a 75 year old man of good repute, was to have gained.”
Although she did not accept his evidence in respect of his knowledge of the affairs of Mr Spanos Senior, she did not provide any reason for rejecting the respondent’s evidence in relation to the instrument, not merely as less than probable, but as not even raising a reasonable doubt as to the relevant elements of the charge.
There was no suggestion in the Magistrate’s judgment that her Honour obtained any assistance in assessing questions of credibility by reference to the demeanour of the witnesses or other advantages obtained by a judge hearing oral testimony. It may be that the reasons were deficient in a material respect, but it may also be that there was a material omission in the reasoning process.

Proceedings in the District Court

In the District Court, Solomon DCJ commenced by setting out the statutory provisions relevant to the charge and noted the material which had been presented in evidence before him. He then stated (Judgment, 08/08/07, p 2):
“The matter comes before me as a rehearing and in accordance with the principles laid out in Charara v The Queen (2006) 164 A Crim R 39, I am to form my own view of the facts, recognising the advantage that the magistrate had who saw and heard the witnesses called in the Local Court. Senior Counsel for the prosecutor helpfully read to me the principles laid down in Fox v Percy (2003) 214 CLR 118.”
His Honour then set out the “simple factual matrix” on which the case turned in terms which appear to be uncontroversial. He confirmed a view that he had expressed in the course of argument that “the case revolved around credit”: p 5. He identified the issue in the following terms (the “appellant” in the District Court being Mr Lazaris, the respondent in this Court):
“Insofar as the evidence of the appellant and the prosecutor is concerned there is a dispute which is one of oath against oath. It is not for me to decide which of the two witnesses, that is, the prosecutor or the appellant, I believe. It is a matter for me to apply the appropriate legal principle which is that the prosecutor bears the onus of proof and that when the appellant presents material to the court, I must consider that material together with the material in the prosecutor’s case to decide if the prosecutor has proven his case beyond reasonable doubt.”
His Honour noted that the appellant before him was a man of good character and had denied forging the document. He stated (p 7):
“I accept the submission that the appellant had the opportunity to commit the offence and that there were possible motives for [him] to commit the offence, those motives being that the appellant had a relationship with the in-laws of the sister and that at the time of the signing of the power of attorney the appellant had a business relationship with the father and his family.”
His Honour considered that the question of motive was not decisive. He then turned to the evidence of Mr Westwood and noted the qualification extracted from Mr Westwood resulting from the fact that he had been required to examine a photocopy, the original of the power of attorney not being available. His Honour concluded that there was “a possibility that the prosecutor wrote his signature in a foreign way on the power of attorney”. He concluded that he was not satisfied beyond reasonable doubt that the present respondent had made the false document. The appeal was accordingly upheld and the conviction set aside.

The “Fox v Percy” challenge

The first ground of challenge identifiable in the written submissions for the applicant involved a supposed misunderstanding of the role of the District Court on appeal from the Local Court or, if the principles were understood, an error in failing to apply them properly. Such a complaint may give rise to a constructive failure to exercise the jurisdiction or an excess of jurisdiction. However, that failure must be demonstrated on the material properly before the Court for that purpose. It will not arise from a scouring of the transcript in the hope of discerning error in the course of an exchange with counsel. It may, however, be demonstrated by reference to the decision and the reasons given by the judge for reaching that decision. In the present case it was assumed that such an error could be demonstrated by reference to any of the evidence and transcript in the District Court and the transcript and reasons for judgment of the Magistrate in the Local Court. The form of the challenge was directed to the manner in which his Honour dealt with questions of credibility in relation to the evidence of witnesses who had not appeared before him.
Two points with respect to the jurisdiction being exercised by the District Court are of importance for present purposes. The first is that the jurisdiction conferred by the Appeal and Review Act is, relevantly, for determining “an appeal against conviction”, language used in ss 11, 18 and 20. Further, the appeal is described as being “by way of rehearing”. As noted by McClellan CJ at CL in Gianoutsos v Glykis [2006] NSWCCA 137; 65 NSWLR 539 at [31]:
“It is clear from the terms of s 18 that an appeal to the District Court by a defendant in the Local Court is not merely a mechanism which, once invoked, allows the trial to be started afresh. The appeal is to be conducted on the basis of certified transcripts of the evidence given in the Local Court, and fresh evidence may only be given with the leave of the court.”
It does not follow that the nature of the rehearing will necessarily be the same as in an appeal under s 75A of the Supreme Court Act in this Court. According to s 20(1) of the Appeal and Review Act the District Court may determine an appeal either by setting aside the conviction or by dismissing the appeal. On the one hand, it does not itself enter a conviction; on the other, there is no express power providing for remittal to the Local Court. It is contemplated by ss 18 and 19 that evidence may be given before the District Court, with leave, and that witnesses may be required to attend and give evidence in person.
There was no suggestion that the appeal in the present case should have been conducted otherwise than by reference to the documentary material and there was certainly no suggestion that the exercise of jurisdiction miscarried because the District Court Judge did not hear oral evidence.
The change in procedure from the earlier provisions for appeal from the Local Court to the District Court in criminal matters was discussed by Mason P in Charara v The Queen [2006] NSWCCA 244; 164 A Crim R 39 at [12]-[17]. His Honour noted the nature of the present appeal procedure, including the requirement that the judge “form his or her own judgment of the facts so far as able to do so, ie recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called in the lower court” – at [18] – and noted that the prosecutor “continues to carry the onus”: at [22]. Further, his Honour held that it was entirely appropriate for the District Court to consider the reasons for judgment in the Local Court: [24]; see also Mordaunt v Director of Public Prosecutions (NSW) [2007] NSWCA 121; 171 A Crim R 510 at [53] (McColl JA, Beazley and Hodgson JJA agreeing). See also Sasterawan v Morris [2007] NSWCCA 185, at [34]-[35].
The complaint about the way in which the District Court Judge reasoned to his conclusion on the question of credibility is without substance. As noted at [30] above, his Honour commenced his judgment with reference to Charara and the principles laid down in Fox v Percy. In other words, he expressly adverted to the particular aspect of his jurisdiction which it is alleged he misconceived. In such circumstances, a court exercising powers of judicial review should not readily be persuaded to infer that an experienced judge who correctly stated the principles to be applied then failed to apply them. His Honour stated that he had read the judgment of the Magistrate and attempted, “without success”, to determine how she came to decide questions of credit”: Judgment, p 7. As the written submissions for the applicant fairly conceded, the Magistrate “did not reason her findings as to credibility in her judgment”. It is then contended that “such lack of reasoning could not, on the facts, have driven a fair-minded observer to conclusions adverse to the plaintiff of the kind in these proceedings”. The submission continued:
“In other words the plaintiff submits that the circumstance that the District Court was not persuaded beyond a reasonable doubt that the plaintiff did not attend the premises of the defendant in 1995 in order to have a power of attorney witnessed and that the possibility that the plaintiff forged his own signature cannot be excluded each do not and cannot be a reason for rejecting the evidence of the plaintiff as prosecutor in the Local Court.”
It may be that these submissions were intended as no more than an element in a complaint of apprehended bias because, in the next paragraph, they refer to the Judge’s unreasonable hostility to the applicant’s case. Nevertheless, and assuming that they were intended to have some separate operation, they do not rise above an invitation to explore the merits of the fact-finding exercise in the District Court. There was no question of “rejecting” the applicant’s evidence: the question was whether, when assessed with the qualification conceded by Mr Westwood and the evidence of the respondent, the Court was satisfied beyond reasonable doubt as to each element of the charge. There is nothing in the reasons or in the ultimate determination of the District Court to demonstrate that there was some unexpressed misunderstanding underlying the conclusion. This ground was not made good.

Apprehension of bias

The principles with respect to an apprehension of bias were not articulated in the applicant’s case, but are not in doubt. The governing principle is that “a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”: see Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ); see also Johnson v Johnson [2000] HCA 48; 201 CLR 488 at [13]; Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd [2006] HCA 55; 229 CLR 577 at [112], discussed and applied recently by this Court in Lee v Cha [2008] NSWCA 13 at [39]-[44].
In order to establish the basis for such a complaint, it is open to an applicant to call evidence in this Court. In the present case, the matter proceeded on the basis that the transcript was in evidence and submissions were made on the basis of the transcript. In particular, reliance was placed upon comments made by his Honour on the second day of the hearing in the District Court, namely 8 August 2007.
In the written submissions for the applicant, three broad challenges may be identified. No doubt they should be addressed cumulatively if any have substance. The first was that his Honour described part of the applicant’s evidence as “just preposterous”: Tcpt, 08/08/07, p 2. No doubt that was strong language adverse to the applicant on a question of credibility. However, read in the context of a continuing debate with counsel for the applicant, it is clear that his Honour was not willing to accept at face value a statement by the applicant about his warm feelings for his sisters, in circumstances where his action in relation to the apartment in Nicosia did not appear to be based on warm affection, at least for Ms Georgiades. In fact, his Honour had identified an apparent inconsistency which, although forcefully expressed, was by no means without substance. In any event, it is necessary to read the exchange in the context of the judgment which followed shortly and which placed no significance on this evidence.
The second area of complaint was that his Honour demonstrated a degree of hostility to the applicant’s case throughout the debate with his counsel. There is no doubt as to the characterisation of his Honour’s state of mind. However, it did not give rise to an apprehension of pre-judgment; rather, as his Honour stated, he had “formed some very firm views about the case”, but only having read all of the papers that had been tendered in evidence on the previous day: Tcpt, p 1. As explained by Kirby and Crennan JJ in Concrete Pty Ltd at [112] (Gummow ACJ agreeing):
“Sometimes judicial interventions and observations can exceed what is a proper and reasonable expression of tentative views. Whether that has happened is a matter of judgment taking into account all of the circumstances of the case. However, one thing that is clear is that the expression of tentative views during the course of argument as to matters on which the parties are permitted to make full submissions does not manifest partiality or bias.”
If his Honour had qualified his comments by some such anodyne remark as “subject to whatever you may have to say, I have formed firm views …”, it seems unlikely that this challenge would have warranted consideration. These, it must be reiterated, were not mere “tentative views” but firm views based on a consideration of all the evidence and expressed in the course of argument, but immediately prior to judgment. There can be no complaint that his Honour delivered an ex tempore judgment and it was therefore inevitable that he would have formed views by the morning of the second day. The hypothetical fair-minded observer would properly have taken these considerations into account.
It is also fair to say that the exchanges between the bench and counsel were robustly expressed. Nevertheless, there is no suggestion that Mr Lakatos SC, who then appeared for the applicant, was prevented from putting relevant submissions or that he was otherwise dissuaded from presenting the applicant’s case as best he could. He sometimes asked to be heard out, in the face of interruptions (eg Tcpt, p 6) but, while arguably discourteous, judicial interruptions do not themselves demonstrate bias or anything like it.
The real problem that the applicant faced was not the acceptance or rejection of his evidence but, in a criminal proceeding, the need to establish to the satisfaction of the court, beyond reasonable doubt, that each of the elements of the offence had been made out. The views which were being expressed by his Honour in the course of argument with counsel experienced in criminal matters related to his difficulty in perceiving how the evidence could be assessed to achieve that high burden of proof. A reading of the whole of the transcript reveals a full debate between the bench and counsel as to matters which were of real concern, were not dealt with adequately in the judgment of the Magistrate and on which the applicant needed to persuade the District Court in order to succeed. The question of the respondent’s good character was but one example in that regard: Tcpt, pp 27-29. The complaint is without substance.
The third area of complaint was that, in reviewing the material before him, his Honour sought to draw inferences about the troubled family relationships between the applicant and his sisters which had not been fully dealt with either in the Local Court or in the District Court. However, if that were so, the applicant was in effect given the opportunity to deal with those matters and say whatever needed to be said. This may have been intended as a particular of procedural unfairness rather than bias, but on either approach it goes nowhere.

Procedural unfairness

Although it was the only ground of challenge particularised in the summons, there was nothing relied upon to demonstrate procedural unfairness beyond the issues raised under the previous headings, with one qualification. The qualification concerns a somewhat amorphous complaint made at the hearing of the appeal that the respondent failed to comply with orders made before the hearing in the District Court on a notice of motion filed by the applicant.
The substance of this complaint related to the document which had been shown to the applicant in the course of his cross-examination and which was marked “MFI C” in the Local Court. The applicant sought production of the original of that document, in the firm belief, which he expressed from the bar table in the present proceedings, that it was the original which had been produced to him in cross-examination. The complaint of procedural unfairness must fail for a number of reasons. First, there was no admissible evidence before this Court to support his suggestion that he had been shown an original document by counsel for the respondent, which had then not been produced. Secondly, counsel for the respondent sought to tender the document in the Local Court, to which course the applicant’s counsel successfully objected. Thirdly, although the original was not produced, a photocopy was produced by the solicitors for the respondent, but the document was not tendered in the District Court. Fourthly, it is by no means clear how the document would, if produced, have materially assisted the applicant. There was no evidence before the Court in that regard.
Accordingly, even disregarding the failure of the applicant to put on evidence that he had been shown the original of the document, the claim for procedural unfairness must fail.

Further evidence

There remains a question as to the admissibility of the further material tendered by the applicant before this Court. A bundle of documents admitted (without objection) in this Court included a notice to produce issued by the applicant to the solicitors for the respondent on 8 April 2008. (No complaint was made about the service of this notice on the day before the hearing.) The notice concerned a single page of a document presented to the applicant in the course of cross-examination in the Local Court. As already noted, he had earlier sought from the solicitors for the respondent a copy of the document which had been marked as “MFI C” and returned to them. What he received was a photocopy, but being persuaded that the document he had been shown was an original with coloured stamps, it was production of the original which he sought in this Court. The original was not produced, but the photocopy was and was tendered and became an exhibit, subject to an objection as to relevance.
The prosecution case in the Local Court was significantly impeded by the absence of the original power of attorney said to have been made by the respondent. As already noted, Mr Westwood’s opinion as to the signature was constrained by the absence of an original document. However, the photocopy document, which was admitted twice, as exhibits 1 and 8, appeared to have two pages, the first containing the general power of attorney, with the disputed signature of the applicant and the attestation by the respondent, whilst the second page had a certification with a seal apparently attached by the High Commission of Cyprus in Canberra. The certification on exhibits 1 and 8 was dated 4 February 1998, and stated that it was “a certification of the signature of Carolyn Georgiades only”. The provenance of that certification is obscure as Ms Georgiades does not appear to have signed the document in any place. In any event, she was not the grantor of the power, but rather the grantee. On the other hand, “MFI C” purported to be a certification of the signature of the applicant. It was dated 13 April 1995. A second document tendered on the appeal, also dated 13 April 1995 was a form letter from the Cyprus High Commission in Canberra addressed to the respondent and enclosing certified copies of powers of attorney in the names of the applicant and Mr Spanos Senior.
The only factual issues as to which it was open to the applicant to lead evidence in this Court related to procedural unfairness and a reasonable apprehension of bias on the part of the District Court Judge. These documents, which were not tendered before his Honour, were said to be relevant to the claim of procedural unfairness. As indicated above, the claim for procedural unfairness must fail, but nevertheless it was appropriate to consider a claim based upon the failure to produce the original of “MFI C”. Accordingly, the objection taken on the grounds of relevance should be rejected and the documents admitted on that limited basis.

Conclusions

The foregoing discussion has ranged significantly beyond the issues raised by the applicant at the hearing of the summons. That is in part because the summons and the written submissions prepared by counsel raised possibilities which were not explored in argument, the applicant lacking representation and legal expertise. However, no tenable ground of review of the decision of Solomon DCJ has been identified and accordingly the summons must be dismissed with costs.
Had a ground of review been established, it might have been necessary to consider whether, in the exercise of discretion, the Court would have granted relief to a prosecutor in a criminal proceeding. The fact that statutory rights of appeal are quite limited, as indicated by s 5B of the Criminal Appeal Act 1912 (NSW), does not necessarily militate in favour of review on the application of a prosecutor: see R v Judge Mullaly; Ex parte Attorney-General (Cth) [1984] VR 745 at 750 (Brooking J) and Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; 209 CLR 372 at [97] and [103]-[108] (McHugh J). Because the application must be dismissed for other reasons, this issue need not be pursued.
BELL JA: I agree with Basten JA.

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LAST UPDATED:
28 April 2008